Nothing to be “Glee-ful” About

Show Choir Litigation Devolves into Copyright Morass

A Burbank show choir that purportedly served as the inspiration for the hit television series “Glee,” has been making headlines recently as the principal named defendants in a major music copyright infringement action.

Tresona Multimedia versus Burbank High School Vocal Music Association et al. potentially has tremendous implications for music copyright law.

First, a bit of background. A music copyright actually comprises a bundle of exclusive rights. The copyright owner, typically a music publisher, has the exclusive rights (i) to reproduce and distribute the work, (ii) to prepare or authorize derivative works, like arrangements, (iii) to perform the work publicly, for example, by digital audio transmission and (iv) to display the work. Music publishers carefully parse out these respective rights and monetize them through third-party licensing organizations, such as ASCAP (for performance rights) and the Harry Fox Agency (for mechanical reproduction rights).

Because of these separate rights, clearance can be tricky: You cannot assume that if you have cleared a particular right that you have cleared all of the respective rights that you need for a particular use of music or activity. For instance, a repeat airing of a television program requires both a performance license covering the broadcast, and also a synchronization license covering the inclusion of the music “in timed relation with” or synchronization with the program video.

The longstanding practice, with respect to custom arrangements made for performances by choirs and bands, has been to request and obtain a permission to arrange from the publisher of the underlying music composition that is being arranged. The permission to arrange authorizes the creation of a custom arrangement for performance and also permits the reproduction of the custom arrangement in sufficient copies for use by the singers and performers in concert. While the Copyright Act does not specifically state that custom band and choral arrangements comprise a derivative work requiring permission from the copyright owner, this has always been the assumption, based on general principles of music copyright law.

Section 115 of the Copyright Act, by contrast, which confers a compulsory mechanical license for permitting reproduction of musical works in sound recordings, does expressly confer a limited right to arrange a work for recording as part of the compulsory license.

In the past several years, Tresona has begun to serve as a licensing agent for a number of music publishing companies, issuing various types of permissions to choirs, bands and other performing groups, for purposes of creating arrangements along with synchronization, mechanical and grand rights licenses (for dramatizing a work).

Tresona learned that the Burbank High School Choir had not been obtaining permissions to arrange or other related types of standard clearance licenses for its concerts or related activities. After efforts to resolve the matter were unsuccessful, Tresona brought suit for copyright infringement. Tresona’s complaint named not only the choral organization, but also its director, individual board members and even their spouses (board members and spouses were named under the theory that they were indirectly benefitting from the alleged copyright infringement by virtue of certain scholarships alleged to have been awarded to the children of board members).

The matter initially came before the court on cross motions for partial summary judgment on the issue of whether it was appropriate to retain the Choir’s Director, Brett Carroll as Defendant. This determination in turn hinged on whether Carroll had qualified immunity as a public official (as an employee and instructor at Burbank High School, a public school).

In its preliminarily issued ruling on December22, 2016, the Court found that it could not be established, as a matter of law, that Carroll either “violated clearly established rights” or clearly acted in a fashion that was not “objectively reasonable.” The Court explained:

This Court finds that the copyright laws Carroll allegedly violated were not “clearly established…” This Court agrees with Tresona that copyright laws in general were firmly established in 2011, including the need for a license to create a derivative work, distribute audiovisual recordings of a copyrighted work, or perform a musical work in a dramatic fashion. See dkt. 89 at 15-22. However, the Court finds that “the contours” of these rights were not “sufficiently clear· [so] that a reasonable official would understand that what he is doing violates that right.” See Anderson v. Creighton, 483 U.S. at 639…

Use of a copyrighted work “is not an infringement of copyright” when used “for purposes such as … teaching (including multiple copies for classroom use), scholarship, or research.” 17 U.S.C. § 107 (emphasis added).…In this motion, the parties did not brief for the Court the issue of fair use, and thus the Court does not resolve whether fair use would be a successful defense on the merits. At this stage, the Court merely finds that since teaching is explicitly listed as fair use, a public school teacher acting in his teaching capacity would be reasonable in believing the fair use defense applies.

Because of the unique procedural posture of the case, this opinion leaves even more unresolved the following critical questions:

How broadly may individuals be insulated from personally liability for copyright infringement as “public officials”?

Is the law really unsettled with respect to the need for obtaining a permission to arrange for performance by a band or choir?

Why does an in-classroom fair use exemption have any bearing on separate concert activities?

Music publishers and performing arts groups will certainly be following this case closely, and, presumably, some of them may also be contacting their elected representatives in Congress to propose legislation clarifying these issues.